- 10 - have fully cooperated with the Secretary. Because, as explained in detail below, petitioner did not establish a prima facie case that its treatment of Graham was reasonable, the burden of proof remains on petitioner with respect to 1997 as well. II. Classification of Graham for Employment Tax Purposes A. Status Under FICA and FUTA Provisions In contending that Graham should not be classified as an employee under the FICA and FUTA provisions of the Internal Revenue Code, petitioner focuses on Graham’s status as an S corporation shareholder and alleged lack of status as a common law employee. We briefly address these contentions seriatim. 1. Contentions Regarding S Corporation Shareholders Petitioner cites sections 1366, 1372, and 6037(c) and Durando v. United States, 70 F.3d 548 (9th Cir. 1995), presumably in support of an argument that S corporation shareholders should not be deemed employees. Sections 1366 and 6037(c) generally require that income items of S corporations be passed through to shareholders on a pro rata basis and reported by such shareholders in a manner consistent with treatment on the corporate return. These rules, however, pertain to calculation of income tax liability under subtitle A and have no bearing on computation of Federal employment taxes. Veterinary Surgical Consultants, P.C. v. Commissioner, 117 T.C. 141, 145 (2001), affd. sub nom. Yeagle Drywall Co. v. Commissioner, 54 Fed. Appx.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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